Hindu Marriage Act, 1955 (25 of 1955), Section 13-B -- Divorce with mutual consent -- Denial of waiver of six months period -- Re-marriage of petitioner No.2 was on the cards, but the same could not be finalized due to pendency of petition -- Approach adopted by the Court to insist waiting period of six months for second motion, was uncalled for -- Marriage between the parties has irretrievably broken -- Opportunity to live their lives in the manner they like, including remarriage, cannot be denied -- Insisting to wait to another six months would result in adding to their woes -- Revision petition allowed.

(Para 3-6)

Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Transfer of Divorce petition – Transfer sought from Faridkot to Bathinda – Petitioner is currently a resident of the Village in District Bathinda and distance between village and Bathinda is in excess of 30 kms -- Distance between Bathinda and Faridkot is 69 kms. approximately – Held, undoubtedly, the convenience of the wife/lady under normal circumstances should prevail, however, such rule of convenience is not to be applied blindly -- Petitioner in any event has to travel more than 30 kms. -- Application under the provisions of the DV Act was filed only after filing of the divorce petition -- Applications seeking transfer are not to be entertained in a routine and casual manner -- Petition dismissed.

(Para 6-10)

A. Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 – Custody of child case – Territorial jurisdiction -- Petitioner, having once acquiesced to the jurisdiction by not raising the issue of territorial jurisdiction, said issue cannot be raised at belated stage.

(Para 11)

B. Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6(a) – Legal presumption for child below 5 years -- Qua a child less than five years, there is a legal presumption with regard to natural guardianship vis a vis “minor’s person” and “minor’s property”, both being in favour of the mother -- Benefit of legal presumption of guardianship would also enure therewith all the other consequential rights arising therefrom, including the legal presumption qua custody of a minor below five years in favour of his/her mother.

(Para 12)

C. Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6(a) -- Custody of child below 5 years – Deeming place of custody -- Section 6(a) mean and intend that even though a minor below five years may not be in physical custody/residing with mother, but her/ his custody would be deemed to be at a place where the mother is residing -- It is so held accordingly.

(Para 14)

D. Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6(a) -- Custody case at Panipat – Physical custody of child with father/petitioner at Jagadhari/Yamunanagar – Age of child below 5 years -- Natural custody would be presumed to be with mother, regardless of the place where the child was actually residing physically at the that time – Relevant consideration and cut-off date for consideration was the date on which the petition was filed -- Her mother/ respondent-wife was, therefore, well within her right to invoke territorial jurisdiction of Family Court at Panipat.

(Para 7, 15, 16)

E. Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6(a) -- Custody case at Panipat – Physical custody of child with father/petitioner at Jagadhari/Yamunanagar – Age of child below 5 years – Held, it is the welfare and convenience of child which is to be seen -- Being so, all possible endeavors shall be made to avoid travelling of minor daughter from Jagadhri to Panipat, by not insisting on her physical presence, unless really essential -- Family Court at Panipat shall be at liberty to conduct the proceedings either through video conferencing or through WhatsApp/Zoom video call, depending upon internet connectivity.

(Para 17)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 13-B – Conversion of divorce petition into Divorce by mutual consent petition at Appellate stage – Power of -- High Court, during the pendency of the appeal can convert the petition u/s 13 of the Act into a Petition u/s 13B of the Act.

(Para 11)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 13-B -- Divorce by mutual consent – Waiver of six months period – After getting married in the year 2015, the parties have been residing separately since 2016 and despite the efforts, no reunion could take place -- There is another fact which has weighed in the mind of the Court that no issue was born out of the wedlock and there is no possibility of parties resuming the cohabitation and there are chances of alternative resettlement -- In this view of the matter, the statutory period of six months as provided under Section 13B(2) of the Act waived off.

(Para 12)

A. Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 – Custody of minor child – Natural guardian – Right of -- No doubt, u/s 6 the father is a natural guardian of a minor child has a preferential right to claim its custody but Section 6 cannot supersede the dominant consideration as to what is conducive to the welfare of the minor child -- Whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor.

(Para 12)

B. Constitution of India, Article 226 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Custody of minor child – Writ of habeas corpus – Maintainability of -- Writ of habeas corpus can be issued for restoration of custody of a minor to the guardian wrongfully deprived of it -- However, exercise of extra ordinary writ jurisdiction to issue writ of habeas corpus in such cases is not solely dependent on and does not necessarily follow merely determination of illegality of detention and is based on the paramount consideration of welfare of the minor child irrespective of legal rights of the parents -- Welfare of the child is not to be measured by money only nor merely physical comfort -- The word 'welfare' must be taken in its widest sense -- Moral or religious welfare of the child must be considered as well as its physical wellbeing.

(Para 13-18)

C. Constitution of India, Article 226 -- Custody of minor child – Writ of habeas corpus by mother – Minor girl child removed from Canada and brought to India – Whether paramount consideration of the welfare and best interest of the minor girl child lies in return to Canada or continued stay in India -- Both the parents are permanent residents of Canada, are gainfully employed in Canada and have purchased house in Canada and father has not wound up and left employment in Canada and permanently settled in India -- Child has spent major part of more than five years of her life of six years in Canada resulting in her integration with the social, physical, psychological, cultural and academic environment of Canada – On the basis of the summary inquiry, for the welfare and in best of interest of the minor girl child direction given to father to return to Canada alongwith minor daughter on or before 01.01.2021; fails to comply with direction, father shall hand over custody of the minor girl child and her passport to the petitioner on 02.01.2021 or such other date as may be agreed to by the petitioner -- On such return of the minor girl child to Canada, either of the parties shall be at liberty to file appropriate application/petition for appointment of guardian, grant of custody of the minor girl child before the Court of competent jurisdiction.

(Para 29-32)

Hindu Marriage Act, 1955 (25 of 1955), Section 13-B, 28 -- Decree of divorce by mutual consent – Challenged by wife in appeal – Abuse of process of law -- Appellant-wife lived with her husband only for 3 days and thereafter, stayed away from him for more than one year -- Joint petition u/s 13-B of the Act and pursuant to that she has also received the compensation amount and thereafter, again appeared before for the second time and re-affirmed the pleadings and also the settlement arrived in between them – Held, now challenged by creating a figment of lie and imaginary stories as, if, the appellant-wife never went to the Court; as, if, she did not understand the proceedings before the Court; as, if, she has not received any money and that she has been given to understand that the proceedings before the Family Court is only a formality – Appellant-wife is trying to abuse the process of law to gain sympathy with some ulterior motive -- No grounds to entertain appeal, at this stage.

(Para 4-6)

Constitution of India, Article 226, 227 -- Hindu Marriage Act, 1955 (25 of 1955), Section 5 – Marriage prior to marriageable age -- Registration of marriage after attaining marriageable age -- At the time of marriage the bridegroom was 18 years and 23 days old whereas the bride was 22 years 3 months and 1 day old -- Subsequently, they were blessed with a daughter -- Registrar directed to register the marriage after being satisfied that the petitioners fulfill other conditions prescribed under the Hindu Marriage Act, 1955

(Para 1-5)

Hindu Marriage Act, 1955 (25 of 1955), Section 13-B – Constitution of India, Article 226, 227 – Divorce by mutual consent – Waiver of second motion period of six months – Right of – Application for waiver of the second motion filed jointly by the petitioners has been dismissed for the reasons if one of the parties is going abroad, he could come back or give special power of attorney to anyone in the family – Held, husband has to go abroad and in such circumstances, it would be important for him to snap the link as such with his wife for purposes of immigration and, thus, holding on to the first marriage as such might not prove fruitful for purposes of his immigration – Family Court has not applied its mind judicially to the controversy in question and the reasoning as such is not in consonance with the judgment of the Apex Court (Amardeep Singh’s case 2017 (4) RCR (Civil) 608) – Revision allowed, impugned order set aside – Family Court shall take a decision afresh keeping in view the observations made above on the application, within a period of 2 weeks.

(Para 1-7)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 24, 25 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 19, 20, 22, 23 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 340 – Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 2(q), 3, 17, 18, 19, 20, 22, 23, 26, 36 – Special Marriage Act, 1954 (43 of 1954), Section 4, 36, 37 -- Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Code of Civil Procedure, 1908 (V of 1908), Order 10 -- Constitution of India, Article 142 -- Maintenance law -- Interim Maintenance -- Supreme Court framed guidelines in exercise of powers under Article 136 read with Article 142 of the Constitution of India :

(a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrate’s Court, as the case may be, throughout the country;

(b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets;

(c) The respondent must submit the reply alongwith the Affidavit of Disclosure within a maximum period of four weeks. The Courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent.

If the respondent delays in filing the reply with the Affidavit, and seeks more than two adjournments for this purpose, the Court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings -- On the failure to file the Affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on basis of the Affidavit filed by the applicant and the pleadings on record;

(d) The above format may be modified by the concerned Court, if the exigencies of a case require the same. It would be left to the judicial discretion of the concerned Court, to issue necessary directions in this regard.

(e) If apart from the information contained in the Affidavits of Disclosure, any further information is required, the concerned Court may pass appropriate orders in respect thereof.

(f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the aggrieved party may seek permission of the Court to serve interrogatories, and seek production of relevant documents from the opposite party under Order XI of the CPC;

On filing of the Affidavit, the Court may invoke the provisions of Order X of the C.P.C or Section 165 of the Evidence Act 1872, if it considers it necessary to do so;

The income of one party is often not within the knowledge of the other spouse. The Court may invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned.

(g) If during the course of proceedings, there is a change in the financial status of any party, or there is a change of any relevant circumstances, or if some new information comes to light, the party may submit an amended / supplementary affidavit, which would be considered by the court at the time of final determination.

(h) The pleadings made in the applications for maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the Court may consider initiation of proceeding u/S. 340 Cr.P.C., and for contempt of Court.

(i) In case the parties belong to the Economically Weaker Sections (“EWS”), or are living Below the Poverty Line (“BPL”), or are casual labourers, the requirement of filing the Affidavit would be dispensed with.

(j) The concerned Family Court / District Court / Magistrate’s Court must make an endeavour to decide the I.A. for Interim Maintenance by a reasoned order, within a period of four to six months at the latest, after the Affidavits of Disclosure have been filed before the court.

(k) A professional Marriage Counsellor must be made available in every Family Court.

(Para 49)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 24, 25 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 19, 20, 22, 23 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 2(q), 3, 17, 18, 19, 20, 22, 23, 26, 36 -- Special Marriage Act, 1954 (43 of 1954), Section 4, 36, 37 -- Constitution of India, Article 142 -- Maintenance law -- Permanent alimony – Directions given :

(i) Parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the concerned Court, for fixing the permanent alimony payable to the spouse.

(ii) In contemporary society, where several marriages do not last for a reasonable length of time, it may be inequitable to direct the contesting spouse to pay permanent alimony to the applicant for the rest of her life. The duration of the marriage would be a relevant factor to be taken into consideration for determining the permanent alimony to be paid.

(iii) Provision for grant of reasonable expenses for the marriage of children must be made at the time of determining permanent alimony, where the custody is with the wife. The expenses would be determined by taking into account the financial position of the husband and the customs of the family.

(iv) If there are any trust funds / investments created by any spouse / grandparents in favour of the children, this would also be taken into consideration while deciding the final child support.

(Para 49)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 24, 25 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 19, 20, 22, 23 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 2(q), 3, 17, 18, 19, 20, 22, 23, 26, 36 -- Special Marriage Act, 1954 (43 of 1954), Section 4, 36, 37 -- Constitution of India, Article 142 -- Maintenance Law -- Directions given in exercise of powers under Article 142 of the Constitution of India -- Overlapping jurisdiction -- To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, directions given so that there is uniformity in the practice followed by the Family Courts/ District Courts/ Magistrate Courts throughout the country:--

(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set-off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;

(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;

(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.

(Para 63(a))

D. Hindu Marriage Act, 1955 (25 of 1955), Section 24, 25 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 19, 20, 22, 23 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 2(q), 3, 17, 18, 19, 20, 22, 23, 26, 36 -- Special Marriage Act, 1954 (43 of 1954), Section 4, 36, 37 -- Constitution of India, Article 142 -- Maintenance Law -- Payment of Interim Maintenance -- Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.

(Para 63(b))

E. Hindu Marriage Act, 1955 (25 of 1955), Section 24, 25 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 19, 20, 22, 23 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 2(q), 3, 17, 18, 19, 20, 22, 23, 26, 36 -- Special Marriage Act, 1954 (43 of 1954), Section 4, 36, 37 -- Constitution of India, Article 142 -- Maintenance Law -- Criteria for determining the quantum of maintenance -- For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B–III of the judgment -- The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.

Part B-III

-- Factors are the Status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife.

-- The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it.

-- Financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications.

-- A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.

The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.

-- Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant’s property and any income derived from such property, (v) income from claimant’s own earning or from any other source.

-- Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and / or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.

-- The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde³⁷ [³⁷140 (2007) DLT 16.] laid down the following factors to be considered for determining maintenance :

“1. Status of the parties.

2. Reasonable wants of the claimant.

3. he independent income and property of the claimant.

4. The number of persons, the non-applicant has to maintain.

5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.

6. Non-applicant’s liabilities, if any.

7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.

8. Payment capacity of the non-applicant.

9. Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.

10. The non-applicant to defray the cost of litigation.

11. The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/ 24 of the Act. 17.”

-- Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable.

-- Age and employment of parties -- In a marriage of long duration, where parties have endured the relationship for several years, it would be a relevant factor to be taken into consideration. On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. This is of particular relevance in contemporary society, given the highly competitive industry standards, the separated wife would be required to undergo fresh training to acquire marketable skills and re-train herself to secure a job in the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a dependant wife to get an easy entry into the work-force after a break of several years.

-- Right to residence -- Section 17 of the D.V. Act grants an aggrieved woman the right to live in the “shared household”. Section 2(s) defines “shared household” to include the household where the aggrieved woman lived at any stage of the domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the respondent is a member.

The right of a woman to reside in a “shared household” defined under Section 2(s) entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same. This Court in Satish Chander Ahuja v Sneha Ahuja³⁸ [³⁸Civil Appeal No. 2483 / 2020 decided vide Judgment dated 15.10.2020.] (supra) held that “shared household” referred to in Section 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed, or at any stage lived in a domestic relationship. The living of the aggrieved woman in the shared household must have a degree of permanence. A mere fleeting or casual living at different places would not constitute a “shared household”. It is important to consider the intention of the parties, nature of living, and nature of the household, to determine whether the premises is a “shared household”. Section 2(s) read with Sections 17 and 19 of the D.V. Act entitles a woman to the right of residence in a shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared household may not necessarily be owned or tenanted by the husband singly or jointly.

Section 19 (1)(f) of the D.V. Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may direct the respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties.

-- Where wife is earning some income -- The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Courts have provided guidance on this issue in the following judgments.

Maintenance of minor children -- The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extra-curricular / coaching classes, and not an overly extravagant amount which may be claimed.

Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.

Serious disability or ill health -- Serious disability or ill health of a spouse, child / children from the marriage / dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance.

(Para 49(III), 63(c))

F. Hindu Marriage Act, 1955 (25 of 1955), Section 24, 25 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 19, 20, 22, 23 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 2(q), 3, 17, 18, 19, 20, 22, 23, 26, 36 -- Special Marriage Act, 1954 (43 of 1954), Section 4, 36, 37 -- Maintenance Law -- Date from which maintenance is to be awarded -- Maintenance in all cases will be awarded from the date of filing the application for maintenance.

(Para 63(d))

G. Hindu Marriage Act, 1955 (25 of 1955), Section 24, 25 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 19, 20, 22, 23 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 128 – Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 2(q), 3, 17, 18, 19, 20, 22, 23, 26, 36 – Special Marriage Act, 1954 (43 of 1954), Section 4, 36, 37 -- Code of Civil Procedure, 1908 (v of 1908), Order 21, Section 51, 55, 58, 60 -- Maintenance Law -- Enforcement / Execution of orders of maintenance -- For enforcement / execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable -- Order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.

(Para 63(e))

Constitution of India, Article 21, 226 -- Hindu Marriage Act, 1955 (25 of 1955), Section 5(iii), 11 -- Run-away couple – Live-in relationship of boy 24 years/girl 16 years – Police protection to protect life and liberty – Right of -- Section 11 precludes a marriage solemnized in contravention of Sub Section (iii) of Section 5, from the purview of being regarded as void or invalid -- Fundamental Right under Article 21 of Constitution of India stands on a much higher pedestal -- Being sacrosanct under the Constitutional Scheme it must be protected, regardless of the solemnization of an invalid or void marriage or even the absence of any marriage between the parties -- Without commenting on the legitimacy of the relationship between the petitioners, direction given to Superintendent of Police to verify the contents of the petition, particularly the threat perception of the petitioners and complaints/representation and if deemed fit, to take appropriate steps to provide necessary protection qua their life and liberty in accordance with law.

(Para 8-13)

Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Hindu Marriage Act, 1955 (25 of 1955), Section 9 -- Restitution of conjugal rights – Transfer of petition -- Petition u/s 125 Cr.P.C. and D.V. Act, 2005 are already pending at Ludhiana, it would be proper, appropriate and in the interest of justice if all the cases are tried and decided at one place -- Application allowed, petition pending before the Court of Principal Judge (Family Court) Faridkot transferred to the District Judge, Ludhiana for its disposal in accordance with law by the Court concerned.

(Para 6-11)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13-B  -- Divorce by mutual consent – Waiving of statutory period of 6 months for second motion -- Waiver can be considered if : (i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year of separation of parties under Section 13-B(1) is already over before the first motion itself; (ii) All efforts for mediation/conciliation to re-unite the parties have failed and there is no likelihood of success in that direction by further efforts; (iii) the parties have genuinely settled their differences, including alimony, child custody or other pending issues and; (iv) the waiting period will only prolong their agony. Amardeep Singh’s case 2017 (8) SCC 746 relied.

(Para 4)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13-B  -- Divorce by mutual consent – Waiving of statutory period of 6 months for second motion – Parties have executed Memorandum of understanding settling all issues and there is no dispute even with regard to the custody of their minor daughter -- Further, they are both over the age of 30 and are educated -- They would therefore be presumed to know as to what would be in their best interest – Fit case for the learned Additional District Judge to exercise his discretion in their favour, in terms of the law laid down by the Supreme Court and waive the waiting period. Amardeep Singh’s case 2017 (8) SCC 746 relied.

(Para 5,6)

A. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Right of daughter in co-parcenary property – Effect of substitution of section 6 in 2005 – Date of birth of daughter – Father’s life status -- Relevancy of – Held, it confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities -- Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005 (the date of enforcement of Amending Act) -- Rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(Para 129)

B. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Preliminary decree passed – Final decree yet to passed or Appeal pending -- Daughter’s right as co-parcener – Held, provisions of the substituted Section 6 are required to be given full effect -- Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(Para 129)

C. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Oral partition – Effect on daughter’s co-parcenery share – Held, in view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court -- However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted -- A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

(Para 129)

D. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Daughter’s right in co-parcenary property – Speedy  disposal of -- Daughters cannot be deprived of their right of equality conferred upon them by Section 6 -- Hence, Supreme Court requested that the pending matters be decided, as far as possible, within six months.

(Para 129)

E. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Daughter’s right in co-parcenary property – Supreme Court answered the reference  and overruled the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. (2016) 2 SCC 36, the opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar, (2018) 3 SCC 343 = Law Today Live Doc. Id. 10069 = 2018 (1) L.A.R. 264 is partly overruled to the extent it is contrary to this decision.

(Para 130)

Hindu Marriage Act, 1955 (25 of 1955), Section 5,11,12 -- Marriage in violation of age restriction – Registration of marriage – Right of – Held, marriage is only voidable -- Neither of the parties have sought annulment of the marriage, in fact, the parties are seeking to register their marriage -- In law, the marriage is legal and there is no bar to its registration -- Writ petition allowed, direction given to ensure that the marriage be registered within two weeks.

(Para 6,7)

A. Constitution of India, Article 226 -- Custody of 4 years old minor daughter with father – Writ of Habeas corpus by mother -- Maintainability of -- Merely because other remedies are available to the parties, would not render the present petition not maintainable.

(Para 11)

B. Constitution of India, Article 226 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Custody of 4 year old minor daughter with father – Writ of Habeas corpus by mother – Temporary custody given to mother – Held,

-- Minor daughter is suffering from a congenital problem -- Father of the child has appended medical proof of her treatment along with the expenses being borne by him towards the said treatment -- Same would go on to show that the upbringing of the minor child has to be with extra care and attention in constant presence of other family members when the parents are away.

-- Paternal grandmother of the minor daughter is since deceased -- It is only the grandfather and the father of the minor daughter who live with her at the paternal house – Petitioner has taken a permission from her employer to work full time from home – Parents of petitioner are currently staying with her -- She along with them is in a better position to look after the daughter full time, while there is no female attendant at the house of father.

-- She is merely four years and ordinarily, per Section 6 of 1890 Act, custody of a minor who is less than five years has to be with her mother -- No doubt, the above provision postulates that the custody shall “ordinarily” be with the mother -- But the word “ordinarily” is to be construed to mean that unless, prima facie, it is shown otherwise by the father that child would be better taken care of by deprivation of motherhood -- Father must then give some cogent reasons, indicative of the welfare and interest of the child being jeopardized or the exclusive motherhood being imminently non-conducive to the upbringing of child -- Spirit of section 6 hypothesizes that, given the tender age of a minor, suitability of custody is not the predominant factor, what is more relevant or should weigh, is the requisite biological and natural environment, which gives rise to a general presumption that mother is first and best suitable for child care of a minor that age.

-- Minor daughter cannot be stated to be in illegal or unlawful custody, however, since the minor daughter is less than five years, the mother is, therefore, entitled to the benefit of Section 6 -- Until the prayer of the parties qua custody of the minor child is decided by Guardian court, the welfare and interest of the minor child would be better in the hands of mother-petitioner.

-- Temporary custody of the minor given to the petitioner till any further appropriate orders are passed by the Guardian/ Civil Judge.

-- However, clarified that observations are mere obiter dictum in nature. Same would not effect the merits of the permanent custody petition which has been filed by father or interim custody application, if chosen to be filed by him, per liberty granted by this Court -- Guardian/ Civil Judge shall not get influenced with these tentative observations while deciding either of those on their own merits.

(Para 11-18)

Constitution of India, Article 21, 226 – Hindu Marriage Act, 1955 (25 of 1955), Section 5, 11, 12 -- Police protection to run-away couple – Minor girl -- FIR registered -- It is not for High Court in a protection petition to engage itself in social mores, norms and human behaviour or introduce personal ideas on morality – Even in the Hindu Marriage Act, 1956 marriage of a minor girl is not void -- SSP is directed to personally look into the matter and offer help, which is consistent with their safety.

(Para 6,7)

A. Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Divorce petition – Transfer of -- Petitions u/s 125 Cr.P.C. and 9 of Hindu Marriage Act, 1955 are already pending at Amritsar it would be proper, appropriate and in the interest of justice if all the cases are tried and decided at one place -- In matrimonial matters, convenience of wife is to be preferred over the convenience of husband – Petition transferred from Ludhiana to Amritsar.

(Para 1, 6-11)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 19 – Divorce petition – Territorial jurisdiction -- Husband can only institute proceedings, either where marriage was solemnized or where the wife is residing or where the parties last resided together -- Only in a case where wife is residing outside India, the husband can institute proceedings where he is residing -- Whereas, wife can also file a petition in the District Court within the local limits of whose jurisdiction she herself may be residing -- Said right has been exclusively conferred on a wife obviously keeping her convenience in mind in the matrimonial matters.

(Para 10)

Hindu Marriage Act, 1955 (25 of 1955), Section 9, 13 – Restitution of conjugal rights -- Divorce on ground of cruelty -- Wife had misbehaved with the husband, her children and parents-in-law on several occasions which squarely fall within the four corners of the term “cruelty” -- Evidence as led by the husband, substantiates the afore-mentioned erratic act and conduct of the wife -- If one of the spouses lacks in fulfilling his/her matrimonial obligations or has erratic behaviour or act and conduct towards the other spouse to the extent that it hurts the other spouse physically or mentally, then the true meaning of the marital bliss is lost and in such eventuality, the other spouse cannot be compelled to live together with the erring spouse – Decree of divorce deserved to be granted in favour of the husband and that he could not be compelled for the restitution of conjugal rights to co-habit with the wife.

(Para 26-31)

Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Chapter I, Section 7, 11 – Adoption – Ceremony of -- Consent of wife – Compliance of the conditions in Chapter I of the Act of 1956 is mandatory for an adoption to be treated as valid -- Two important conditions as mentioned in Sections 7 and 11 of the Act of 1956 are

--     the consent of the wife before a male Hindu adopts a child and

--     proof of the ceremony of actual giving and taking in adoption.

Two essential conditions i.e. the consent of the wife and the actual ceremony of adoption have not been established – Civil suit for declaration that appellant is adopted daughter dismissed, upheld by High Court – Held, no error in the judgment of the High Court.

(Para 1, 12-14)

A. Family Courts Act, 1984 (66 of 1984), Section 3 -- Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 37, Section 51 – Hindu Marriage Act, 1955 (25 of 1955), Section 24, 26 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Recovery of Maintenance – Execution Proceedings -- Power of Civil imprisonment – Court has the discretion to decide against detention in civil imprisonment and order either; the judgment-debtors detention in custody of an Officer of the Court for maximum fifteen days, or release him on furnishing security for appearance on a specified date if the decree is not sooner satisfied -- There exist sufficient safeguards at each stage against the detention of the judgment-debtor, which the Court cannot circumvent.

(Para 15, 16)

B. Family Courts Act, 1984 (66 of 1984), Section 3 -- Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 37, Section 51 – Hindu Marriage Act, 1955 (25 of 1955), Section 24, 26 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Recovery of maintenance – Execution of – Service upon parties – Presumptive service – Process of law -- Legal fictions cannot be created extensively to infringe on the liberty of a citizen and then pack him off to prison based on a presumption of service without following the due process of the law.

(Para 20)

C. Family Courts Act, 1984 (66 of 1984), Section 3 -- Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 37, Section 51 – Hindu Marriage Act, 1955 (25 of 1955), Section 24, 26 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Recovery of maintenance – Execution of – Family Court acting under the Hindu Marriage Act is not exercising the powers of the Magistrate u/s 125 (3) of Cr.P.C., who can order imprisonment for a month in default of payment of maintenance determined under that provision on failure of a warrant of arrest for levying the amount due, which presupposes due service of the order in the proceeding.

(Para 20)

D. Family Courts Act, 1984 (66 of 1984), Section 3 -- Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 37, Section 51 – Hindu Marriage Act, 1955 (25 of 1955), Section 24, 26 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Recovery of maintenance – Execution of -- Default imprisonment -- Question of putting the defaulter in prison, to be sent in the proverbial hand-cuffs, does not arise in the proceedings in enforcement of arrears of maintenance by the ex-wife -- It is unheard of to straightaway issue a warrant of imprisonment without first enforcing attendance -- Family Court must avoid an identity crisis sitting as Family Court (Civil) and Magistrate (Criminal) and alternating between the two different jurisdictions from the same dais to achieve different results -- Judge appears to have mixed up the two elements by a concoction and that too by following an illegal procedure in terrorem with an inherent defect to start with resulting from non-service of notice upon the husband – Order set aside.

(Para 20, 48, 51)

E. ratio decidendi -- Precedent – Conclusion of case – Reliance upon -- Question is how to read judgments for the law and principle/s laid down therein in the context of key facts and relevant circumstances of a case decided and how they are treated by the Judge and what it means to apply its ratio decidendi [the reason for the legal decision] as a precedent in another case, while distinguishing its obiter dictum and non-essential facts recorded in the narration of facts upon which the ratio may not be based.

-- The head-note made by a reporter in a law journal of reported cases indicates only the broad outlines of the case or the type it falls in and is the last thing to rely on in a judgment or order.

-- Determining the true ratio of a case is not as simple as identifying the reason for the decision in a complex case. There are cases without ratio but with conclusions. A conclusion does not constitute precedent.

(Para 43)

F. Reliance on judgments -- Tendency of placing blind reliance on judgments should not be the judicial reflex, as they have to be applied carefully to the fact situation from case to case since only the ratio binds and one different material point or relevant fact can alter the entire aspect.

(Para 47)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Code of Civil Procedure, 1908 (V of 1908), Order 2 Rule 2, Order 7 Rule 11, Section 11 – Second petition for divorce – Res-judicata -- In matrimonial matters, the rigours of the doctrine of res judicata and principles in Order II Rule 2 have to be viewed more liberally than in other civil disputes -- In matrimonial matters, the Family Court has not only to deal with the facts and law, but also the conduct of both the parties, studying them as a psychologist might while acting as a marriage counsellor -- If nothing works, then, as a Judge bound to make a final decision – Order of Family Court rejecting application u/O 7 R11, upheld.

(Para 8)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 11 – Void marriage – Maintenance – Right of -- It is well settled that a marriage which is null and void is no marriage in the eye of law -- Where the marriage is a nullity application for maintenance is liable to be set aside on that ground alone.

(Para 26)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 11, 13, 15 – Void marriage -- Divorce decree -- Marriage during pendency of appeal – Had it been the legislative intent that a marriage during the pendency of an appeal should be declared void, Section 11 would expressly have provided so.

(Para 31)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 15 – Decree of divorce – Appeal after limitation – Condonation of delay – Right to re-marry -- Section 15 is not at all attracted, where the appeal from the decree of divorce had been filed almost a year after expiry of the period of limitation for filing an appeal -- Bar, if any, u/s 15 of the Hindu Marriage Act applies only if there is an appeal filed within the period of limitation, and not afterwards upon condonation of delay in filing an appeal unless, the decree of divorce is stayed or there is an interim order of Court, restraining the parties or any of them from remarrying during the pendency of the appeal.

(Para 34, 35)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Permanent alimony u/s 25 of HM Act – Maintenance u/s 125 Cr.P.C. – Power of -- Whether after grant of permanent alimony u/s 25 of the Act, a prayer can be made before the Magistrate u/s 125 of the Code for maintenance over and above what has been granted by the Court while exercising power u/s 25 of the Act.

--    Section 25(1) of the Act empowers the Court, while passing any decree, to consider the status of the parties and whether any arrangement needs to be made in favour of the wife or the husband; and by way of permanent alimony, an order granting maintenance can also be passed by the Court.

--      At the stage of passing a decree for dissolution of marriage, the Court thus considers not only the earning capacity of the respective parties, the status of the parties as well as various other issues. The determination so made by the Court has an element of permanency involved in the matter.

--       However, the Parliament has designedly kept a window open in the form of sub-sections (2) and (3) in that, in case there be any change in circumstances, the aggrieved party can approach the Court under sub-section (2) or (3) and ask for variation/ modification.

--     Since the basic order was passed by the concerned Court u/s 25(1), by very nature, the order of modification/variation can also be passed by the concerned Court exercising power u/s 25(2) or 25(3) of the Act.

Held, since the Parliament has empowered the Court u/s 25(2) of the Act and kept a remedy intact and made available to the concerned party seeking modification, the logical sequittor would be that the remedy so prescribed ought to be exercised rather than creating multiple channels of remedy seeking maintenance -- Application preferred u/s 125 of the Code shall be treated and considered as one preferred u/s 25(2) of the Act.

(Para 10-17)

Hindu Marriage Act, 1955 (25 of 1955), Section 13-B(2) – Divorce by mutual consent – Waiver of 6 months for second motion statement -- Parties living separately since 30.09.2018 -- Reconciliation proceedings have failed -- Petitioner has got engaged with a boy, who is to go abroad and before going abroad, he wants to solemnize marriage with the petitioner – Parties have settled their all disputes and there are remote chances of reconciliation -- No issue was born out of the wedlock – Trial court directed to waive off the statutory period of six months for recording of statement of the parties at second motion and the parties be allowed to part ways in view of divorce by way of mutual consent.

(Para 9, 10)

Hindu Marriage Act, 1955 (25 of 1955), Section 13-B -- Divorce by mutual consent -- Age on Aadhaar card – Reliance upon -- Dismissal of petition on the ground of solemnisation of marriage before 18 years of age of girl by relying upon Aadhaar card – As per birth certificate the age of girl was more than 18 years – Held, Aadhar Card has been prepared subsequent to the registration of her birth cannot be said to be the conclusive proof of her age -- Rather, more credence is attached to the Birth Certificate or Matriculation Certificate showing the date of birth of a person and these are generally considered as the conclusive proof of one's age -- Endeavour of the Court in such like cases should be to bring the dispute between the parties to an end on the basis of their settlement – Impugned judgment and decree set aside, matter remanded back.

(Para 3-7)

Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Hindu Marriage Act, 1955 (25 of 1955), Section 9 -- Restitution of conjugal rights petition -- Transfer application – Held, cardinal principle for exercise of the powers u/s 24 of CPC is the convenience and inconvenience of the parties -- Paramount consideration for exercise of the power must be to meet the ends of justice -- Convenience of both the parties and not of the petitioner only is to be seen -- Mere fact that the place of trial is 400 Kms away from the place of residence of the petitioner is not enough for exercise of the powers conferred by Section 24 of CPC – Seeking transfer at Narnaul despite the fact that applicant has herself filed another case in District Jhunjhunu, Rajasthan -- Neither the petitioner is resident of Narnaul nor she is working there -- Transfer application dismissed.

(Para 7-10)

Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(i-a) – Indian Penal Code, 1860, Section 498-A -- Divorce petition by husband -- Acquittal of husband -- Cruelty as a ground -- Husband acquitted after a trial for offence u/s 498-A of IPC, levelled by the wife – Ground for divorce made out – Decree of divorce granted.

(Para 14-16)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Constitution of India, Article 142 – Divorce without consent of the second party – Power of Supreme Court -- Only in a case where one of the parties do not agree and give consent, only then the powers under Article 142 of the Constitution of India are required to be invoked to do the substantial Justice between the parties, however, at the same time, the interest of the wife is also required to be protected financially.

 (Para 6)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Constitution of India, Article 142 – Divorce – Power of Supreme Court -- Appellant-husband and the respondent-wife have been living separately for more than 22 years and it will not be possible for the parties to live together – Divorce granted, husband shall pay to the wife a lump sum permanent alimony, quantified at Rs.20,00,000/- (Rupees Twenty Lakhs).

(Para 7,8)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce on the ground of desertion by wife – Maintenance u/s 125 Cr.P.C. – Right of -- Husband cannot urge that he can divorce his wife on the ground that she has deserted him and then deny maintenance which should otherwise be payable to her on the ground that even after divorce she is not willing to live with him.

(Para 8)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce on the ground of desertion by wife – Earlier maintenance not claimed – Effect of -- Mere fact that the wife did not file a petition for grant of maintenance during the pendency of the matrimonial proceedings, is no ground to hold that she is not entitled to file such a petition later on.

(Para 10)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance u/s 125 Cr.P.C. -- Earning wife – Proof of – Issue raised was that Wife being a qualified architect from a reputed university would be presumed to have sufficient income -- No evidence has been led to show what is the income of the wife or where the wife is working -- It was for the husband to lead such evidence -- In the absence of any such evidence no presumption can be raised that the wife is earning sufficient amount to support herself.

(Para 11)

A. Indian Penal Code, 1860 (45 of 1860), Section 498-A -- Offence u/s 498-A IPC – Valid marriage – Requirement of -- For proving the offence u/s 498-A of the Code, proof of valid marriage is not a sine qua non -- When the parties are residing and cohabited together as husband and wife, then the fact that they were not validly married, does not, ipso facto, exonerate the husband from the rigors of section 498-A of the Code.

(Para 11-13)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 7 -- Customary law -- Custom is the strongest source of Hindu law -- Even after codification of Hindu laws, the legislature in its wisdom had protected the custom and also the customary rites and ceremonies of the marriage -- Section 7 specifically provides that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of the parties -- It is not necessary that the customary ceremonies and rites may be of both the parties, rather it may be of either of the parties to the marriage.

(Para 20,21)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 7 -- Customary law -- Chunni ceremony – Validity of marriage -- Chunni ceremony is a prevalent in various communities in some areas of states of Punjab and Haryana as a ceremony for valid marriage -- Generally, the boy puts a chunni (dupatta) over the girl and accepted her as his wife -- When the petitioner himself chosen a special form of marriage i.e. by way of chunni ceremony, he resided and cohabited with her, now he is estopped for denying the same to be a valid form of marriage.

(Para 21, 26)

A. Indian Penal Code, 1860 (45 of 1860), Section 498-A -- Offence u/s 498-A IPC – Protracted trial -- Quantum of sentence -- Petitioner has suffered the agony of protracted trial for more than 13 years -- Substantive sentence is reduced to six months and to pay fine of Rs.3,000/- or in default of payment, to undergo rigorous imprisonment for one month

(Para 30,31)

Hindu Marriage Act, 1955 (25 of 1955), Section 13, 15 – Code of Civil Procedure, 1908 (V of 1908), O 9 R 13, O 43 R 1(d) -- Decree of divorce -- Second marriage by husband after expiry of limitation – Right of second wife -- In application by first wife u/o 43 R 1(d) against dismissal of O 9, R 13, High Court directed that, "the parties shall live together as husband and wife." – Held, High Court even after taking note of the factum of the said marriage, has not adverted to the consequences thereof and has given such directions, which may not be capable of due performance – In such a situation, where the impugned order was passed without hearing the appellant-second wife and not issuing any notice of the appeal to her, is wholly without jurisdiction and legally unsustainable and it has to be set aside on this short ground alone.

(Para 4-14)

Hindu Marriage Act, 1955 (25 of 1955), Section 11, 25 -- Null and Void marriage – Permanent alimony – Right of wife -- Wife would be entitled to permanent alimony u/s 25 of the Act dehors the fact that the decree has been passed u/s 11 of the Act.

(Para 20)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13-B -- Code of Criminal Procedure, 1973 (2 of 1974), Section 154, 173 -- Divorce by compromise – Criminal case not withdrawn by wife – Contempt petition dismissed – Quashing of FIR – Held, if the parties had arrived at a settlement and decided to withdraw the cases filed by each of the parties against the other, the compromise ought to be effectuated in complete sense – Leaving aside the technicalities, Supreme Court deemed it appropriate to quash the proceedings which were initiated at the instance of the respondent-wife -- Further proceedings in said FIR now stand quashed.

(Para 8)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13-B, 25 – Constitution of India, Article 142 -- Divorce by compromise – Right of daughter for maintenance etc. -- Waiver of – Permissibility of -- As per term 6 of Consent Terms, It was certainly open to the wife to give up any claim so far as maintenance or permanent alimony or stridhan but she could not have given up the rights which vest in the daughter insofar as maintenance and other issues are concerned -- By exercising powers under Article 142 of the Constitution of India, Clause (6) of the Consent Terms set-aside.

(Para 8,9)

Hindu Succession Act, 1956 (30 of 1956), Section 10, 15, Schedule, Class 1 heir -- Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Property dispute -- Will by deceased – Execution of Will is yet to be proved – If Will is not proved, the daughter would be entitled to a share in the properties – Held, Daughters are, therefore, necessary parties to the proceedings.

(Para 11-13)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia)(iii) – Custody of child – Study of child – Son aged 10 year is not willing to study in School at Delhi attached with the Boarding House – He wanted to study on old School at Shahjanpur – Held, Child cannot be compelled to study at Delhi – In the interest and welfare of child, he shall be allowed to continue his study at Shahjanpur, where mother reside.

(Para 3-7, 14)

B. Maintenance to wife – One Forum -- High Court directed the appellant-wife to elect one forum from which she wants to get the maintenance -- As the same is not in conformity with the law, the said direction is liable to be set aside.

 (Para 14)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia)(iii) – Custody of child – Visitation right to father – Father is entitled to visitation rights – Permission given to husband to visit his child and he is entitled to take the child from the House of the appellant on any Sunday’s and public holiday’s whenever he visits Shahjanpur -- Appellant-wife shall allow the child to leave along with the respondent-father at 09:00 a.m., and the respondent-husband to return the child at the house of the appellant-wife before 06:00 p.m. on the same day.

(Para 15)

A. Mutation – Nature of -- Mutation of a property in the revenue records are fiscal proceedings and does not create or extinguish title nor has it any presumptive value on title -- It only enables the person in whose favour mutation has been ordered, to pay the land revenue.

(Para 14)

B. Hindu Succession Act, 1956 (30 of 1956), Section 14(1) – Absolute right of women – Mere possession as maintenance – Effect of -- Property gifted by owner to his second wife for her maintenance in 1950 -- Second wife continued to have rights over property only during life time of her husband – On his death, the land in dispute would devolve upon his heirs as per their entitlement and after the registered will has been upheld by the High Court and attained finality, its consequence was to follow accordingly -- Appellant (Daughter of second wife) although was holding possession but not under any of the devise referred to under explanation to Section 14(1) of the Act, 1956 and mere possession would not confer pre-existing right of possession over the subject property to claim full ownership rights after the Act, 1956 came into force by operation of law.

(Para 2,14-20)

Guardians and Wards Act, 1890 (8 of 1890), Section 25 – Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6(a) – Custody of child -- Proceedings for custody initiated u/s 25 of the Guardianship Act, however, the same are to be read in consonance with the provisions of the Hindu Minority and Guardianship Act, 1956 – While passing the order(s) as regards the custody of the minor child, the Court has to take into consideration the welfare of the ward – Child in the instant case is around two years and two months of age -- Custody is to remain with the mother.

(Para 11-14)

A. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Ancestral property -- Plaintiff has miserably failed to prove the nature and character of the property as ancestral for want of (i) Original excerpt (ii) Pedigree table – Bare pleading in the plaint that “S” had sold the ancestral property and purchased another property for proving the property to be ancestral is not sufficient -- Plaintiff ought to have proved that he was fourth generation in lineage.

(Para 15-17)

B. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Ancestral property -- Property not ancestral -- Collusive decree – Challenge to – If the property has not been proved to be ancestral, the suit instituted against the father during his life time challenging the collusive decree suffered by him is not maintainable.

(Para 21)

Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Co-parcenery property – Partition of land during lifetime of father – Declaration of -- Appellant has set up a case that the land in question was Joint Hindu family, coparcenary, ancestral property in the hands of her father -- Jamabandies, mutation and pedigree table indeed do not advance the case of the appellant to prove the ancestral nature of the land -- It does not reflect devolution of the property from three immediate paternal ancestors -- Appellant had sought declaration against her father who was alive at that time whereas it is a settled position that no son or daughter being coparcener can file a suit against his/her father for partition during the life time of the father.

(Para 11)

Hindu Marriage Act, 1955 (25 of 1955), Section 13-B – Divorce by mutual consent – Waiver of six months -- Parties have settled their disputes because the marriage between them has broken -- Disputes have been settled by way of lump-sum, for, the wife would not be entitled to take any maintenance from the second party -- It has also been stated that there were no chances of reconciliation or rapprochement -- All the aforementioned facts are sufficing the principles culled out in the Amardeep Singh’s case, 2017 (4) R.C.R. (Civil) 608 -- Period of six months is waived -- Trial Court is directed to proceed with the matter in accordance with law.

(Para 6,7)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 7, 12 – Void marriage – Decree of – Husband stating that photographs of marriage clicked by ‘P’ and ‘M’ – ‘M’ has not been examined, ‘P’ examined however, after tendering his affidavit towards his examination-in-chief, he never turned up for his cross-examination and thus his statement remained incomplete – Nor is there any scientific evidence to establish that the aforesaid photographs are genuine -- Affidavit of wife before Human right Commission within a week stating that she never agreed for so-called marriage and that she is living happily with her parents causes a dent in case of husband -- No date of marriage is mentioned in the certificate -- Held, husband has been unable to establish performance of ceremonies of the marriage especially the ceremony of Saptapadi -- Neither the photographs relied upon by the appellant stand proved, nor there is any testimony of the Priest who had allegedly performed ceremonies of the marriage – Finding of Ld. Lower court to the effect that there was not a valid marriage between the parties, upheld.

(Para 8-10)

B. Indian Evidence Act, 1872 (1 of 1872), Section 137 – Cross-examination of witness – Requirement of -- A statement bereft of cross-examination is an incomplete statement and cannot be read in evidence.

(Para 8)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 8 – Special Marriage Act, 1954 (43 of 1954), Section 15 -- Marriage Registration Certificate – Whether proof of valid marriage -- Marriage Registration Certificate would be of no consequence when the appellant has been unable to establish the essential ceremonies of the marriage -- When factum of marriage is disputed, then registration of marriage under the Hindu Marriage Act or the Special Marriage Act cannot constitute proof of a valid marriage.

(Para 10)

Hindu Marriage Act, 1955 (25 of 1955), Section 13, 24 – Divorce petition -- Maintenance Pendentlite -- ITR of Advocate-husband -- Income Tax Returns may not reflect the true income -- Minimum income of husband cannot be less than Rs.1,00,000/- per month -- Wife is highly qualified, she was previously working in Australia – Order passed by learned Addl. District Judge disallowing any maintenance pendente lite is set aside -- Husband is ordered to pay Rs.25,000/- per month as maintenance pendente lite to the wife from the date of filing of the application until she is shown to have got a job in private/public sector or till the decision of the divorce petition, whichever is earlier.

(Para 3-13)

A. Hindu Succession Act, 1956 (30 of 1956), Section 6 – Co-parcenery right of daughter -- Amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth -- The section uses the words in the same manner as the son -- It should therefore both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth -- Right to partition has not been abrogated -- Right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.

(Para 24-26)

B. Hindu Succession Act, 1956 (30 of 1956), Section 6 – Co-parcenery right of daughter -- Suit for partition was filed in the year 2002 -- However, during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year 2007 -- Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court.

(Para 27,28)

A. Hindu Succession Act, 1956 (30 of 1956), Section 14 – Absolute property/Restricted estate of Hindu Female -- Ambit of Section 14(2) of the Act must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a “restricted estate” in the property.

(Para 41)

B. Hindu Succession Act, 1956 (30 of 1956), Section 14 – Absolute property/Restricted estate of Hindu Female -- Where property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of Section 14(2) of the Act, even if the instrument, decree, order or award allotting the property prescribes a “restricted estate” in the property.

(Para 41)

C. Hindu Succession Act, 1956 (30 of 1956), Section 14 – Absolute property/Restricted estate of Hindu Female -- Self acquired house – Life interest to wife by Will – Right of -- Case of wife does not fall under Section 14 (1) of the Act but it squarely falls under Section 14 (2) of the Act -- Wife received only “life interest” in the suit house by the Will from her late husband and such “life interest” was neither enlarged nor ripened into an absolute interest in the suit house and remained “life interest”, i.e., “restricted estate” till her death under Section 14(2) of the Act. For the reasons:--

--       First, the testator being the exclusive owner of the suit house was free to dispose of his property the way he liked because it was his self earned property.

--       Second, the testator gave the suit house in absolute ownership to his son and the daughter and conferred on them absolute ownership -- At the same time, he gave only “life interest” to his wife, i.e., a right to live in the suit house which belonged to son and daughter. Such disposition, the testator could make by virtue of Section 14 (2) read with Section 30 of the Act.

--       Third, such “life interest” was in the nature of “restricted estate” under Section 14(2) of the Act which remained a “restricted estate” till her death and did not ripen into an “absolute interest” under Section 14(1) of the Act. In other words, once the case falls under Section 14(2) of the Act, it comes out of Section 14(1). It is permissible in law because Section 14(2) is held as proviso to Section 14(1) of the Act.

--       Fourth, the effect of the Will once became operational after the death of testator, the son and the daughter acquired absolute ownership in the suit house to the exclusion of everyone whereas the wife became entitled to live in the suit house as of right. Wife became entitled in law to enforce her right to live in the suit house qua her son/daughter so long as she was alive. If for any reason, she was deprived of this right, she was entitled to enforce such right qua son/daughter but not beyond it. However, such was not the case here.

--       Fifth, the testator had also given his other properties absolutely to his wife which enabled her to maintain herself. Moreover, a right to claim maintenance, if any, had to be enforced by the wife. She, however, never did it and rightly so because both were living happily. There was, therefore, no occasion for her to demand any kind of maintenance from her husband.

--       Sixth, it is a settled principle of law that the “life interest” means an interest which determines on the termination of life. It is incapable of being transferred by such person to others being personal in nature. Such person, therefore, could enjoy the “life interest” only during his/her lifetime which is extinguished on his/her death. Such is the case here. Her “life interest” in the suit house was extinguished on her death.

(Para 42-50)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13-B, 23 – Divorce by mutual consent -- Parties should be residing separately for at least a period of one year preceding the institution of the petition -- What is expected and required of the Court, is to ascertain as to whether one year has actually passed by since the parties have been residing separately and have not been cohabitating -- Court is expected and required to satisfy itself that the said assertion was correct and there is no connivance or collusion and the consent has not been obtained by force, fraud or undue influence.

(Para 16)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13-B, 23 – Divorce by mutual consent -- Section 23 of the H.M. Act relates to the power and duty of the Court -- It puts fetters upon the relief which can be granted under the H.M. Act -- Proceedings under the H.M. Act have thus been put on a higher pedestal as compared to ordinary suits as regards the standard of proof required for establishing the ground for relief which should be beyond reasonable doubt and that too to the satisfaction of the Court – Even if a party is able to establish the ground for granting relief, the said relief can be denied in a case where the Court is satisfied that the said party is taking advantage in any manner of his or her own wrong or disability and/or has connived, colluded, condoned the act, cruelty complained of or improperly delayed or had been accessory to in any manner for the purpose of getting relief.

(Para 17)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13-B, 23 – Divorce by mutual consent – Setting aside of -- Marriage of the parties was solemnised on 02.03.2008 -- As per petition, they had been living separately since June, 2009 -- Male child was born on 10.12.2009 -- Delivery of the said child took place in Amritsar and husband was the person who had got her admitted there and had given the residential address of Amritsar, which is the matrimonial house -- Entry of birth of the child of the parties in the Municipal records of Amritsar – Wife was thrown at the gate of her parental house on the night intervening 26/27.04.2011 after snatching her son, FIR was registered – Held, on the day when the petition was presented i.e. 18.09.2010 and the statements on first motion were recorded, one year had not elapsed since they were living separately -- Rather even on the second motion stage i.e. 21.03.2011 when the statements were recorded, they were residing together in the matrimonial house -- Mandate u/s 13-B of the H.M. Act having not been fulfilled, the judgment and decree dated 21.03.2011 cannot sustain and deserves to be set aside.

(Para 18-24)

A. Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 3 – Customs – Ingredients to prove -- As per the settled law under Section 3(a) the Act, the following ingredients are necessary for establishing a valid custom --

a.       Continuity.

b.       Certainty.

c.       Long usage.

d.       And reasonability.

(Para 13)

B. Customs – Proof of –

--     Customs, when pleaded are mostly at variance with the general law, they should be strictly proved.

--     Generally, there is a presumption that law prevails and when the claim of custom is against such general presumption, then, whoever sets up the plea of existence of any custom has to discharge the onus of proving it, with all its requisites to the satisfaction of the Court in a most clear and unambiguous manner.

 --    It should be noted that, there are many types of customs to name a few-general customs, local customs and tribal customs etc. and the burden of proof for establishing a type of custom depend on the type and the extent of usage. It must be shown that the alleged custom has the characteristics of a genuine custom viz., that it is accepted willfully as having force of law, and is not a mere practice more or less common. The acts required for the establishment of customary law ought to be plural, uniform and constant.

(Para 13)

C. Customs – Judicial decisions – Reliance upon – A judicial decision recognizing a custom may be relevant, but these are not indispensable for its establishment -- When a custom is to be proved by judicial notice, the relevant test would be to see if the custom has been acted upon by a court of superior or coordinate jurisdiction in the same jurisdiction to the extent that justifies the court, which is asked to apply it, in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.

(Para 14)

D. Customs – Pleadings of – Evidence of -- Appellant did not plead in his written statement about existence of any custom as such -- Parties to a suit are always governed by their pleadings -- Any amount of evidence or proof adduced without there being proper pleading is of no consequence and will not come to the rescue of the parties.

(Para 18)

E. Adoption – Evidence of -- Burden of proving adoption is a heavy one and if there is no documentary evidence in support of adoption, the Court should be very cautious in relying upon oral evidence.

(Para 19)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Divorce -- Mental cruelty – Non-appearance in court – Respondent-wife did not appear before the trial court after filing of written statement, did not respond to the request made by the High Court for personal appearance -- In spite of service of Notice, the Respondent did not show any interest to appear in Supreme Court also -- Conduct of the Respondent by itself would indicate that she is not interested in living with the Appellant --  Refusal to participate in proceeding for divorce and forcing the appellant to stay in a dead marriage would itself constitute mental cruelty

(Para 7)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Family Courts Act, 1984 (66 of 1984), Section 27 – Constitution of India, Article 142 -- Appellant and the Respondent have been living separately for more than 17 years and it will not be possible for the parties to live together and there is no purpose in compelling the parties to live together in matrimony -- Daughter of the Appellant and the Respondent is aged about 24 years and her custody is not in issue -- In order to do complete justice between the parties, divorce allowed under Article 142.

(Para 8,9)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Code of Civil Procedure, 1908 (V of 1908), Section 24 – Transfer of divorce petition -- Children born out of the wedlock are being taken care of by the respondent-husband and family residing at Ludhiana -- In case the petition is transferred from the Court at Ludhiana to a Court of competent jurisdiction at Yamuna Nagar, the children would be the sufferer in absence of their father -- It is appropriate if the petition is allowed to proceed at the place where the same is filed.

(Para 5)

A. Constitution of India, Article 142 – Notice on limited issue – Power of Court to adjudicate -- When the court initially issues a limited notice but subsequently grants leave, the scope of the appeal does not raise a matter of jurisdiction but of judicial discretion -- Since it constitutes a matter of discretion and not of jurisdiction, the guiding principle has to be the advancement of substantial justice.

(Para 17)

B. Hindu Succession Act, 1956 (30 of 1956), Section 29 -- Principle of escheat – Section 29 comes into operation only on there being a failure of heirs -- Failure means a total absence of any heir to the person dying intestate -- When a question of escheat arises, the onus rests heavily on the person who asserts the absence of an heir qualified to succeed to the estate of the individual who has died intestate to establish the case.

(Para 18)

C. Hindu Succession Act, 1956 (30 of 1956), Section 29 -- Principle of escheat – Even in a situation where a founder or his line of heirs is extinct, and the properties escheat to the state, the state which receives a dedicated property is subject to the trust and cannot treat it in the manner of a secular property.

(Para 18)

D. Succession of Math/Religious Institution -- Court must also bear in mind the settled principle that unless the founder of a math or religious institution has laid down the principle governing succession to the endowment, succession is regulated by the custom or usage of the institution.

(Para 19)

E. Hindu Succession Act, 1956 (30 of 1956), Section 29 -- Principle of escheat – Escheat is a doctrine which recognises the state as a paramount sovereign in whom property would vest only upon a clear and established case of a failure of heirs -- This principle is based on the norm that in a society governed by the rule of law, the court will not presume that private titles are overridden in favour of the state, in the absence of a clear case being made out on the basis of a governing statutory provision.

(Para 21)

F. Hindu Succession Act, 1956 (30 of 1956), Section 29 -- Principle of escheat – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Escheat – Power of Collector to adjudicate – Jurisdiction of civil Court -- To allow administrative authorities of the state, including the Collector, to adjudicate upon matters of title involving civil disputes would be destructive of the rule of law -- Civil court has the jurisdiction to adjudicate upon all matters involving civil disputes except where the jurisdiction of the court is taken away, either expressly or by necessary implication, by statute -- Adjudication on titles must follow recourse to the ordinary civil jurisdiction of a court of competent jurisdiction under Section 9 of the Code of Civil Procedure 1908.

(Para 20, 21)

A. Hindu Widow’s Remarriage Act, 1856 (15 of 1856), Section 2 – Death of Husband – Re-marriage of widow in 1952 – Succession of -- Status of – All rights and interests, which any widow may have in her deceased husband's property or to his lineal successors shall upon her re-marriage cease and determine as if she had then died -- Thus, on remarriage, the widow is divested with any right which she may have in the husband's property or property of husband's lineal successors.

(Para 11)

B. Hindu Succession Act, 1956 (30 of 1956), Section 8 -- Hindu Widow’s Remarriage Act, 1856 (15 of 1856), Section 2 – Widow re-married in 1952 – Son from first husband died in year 1972 – Succession as a mother -- Right of -- Succession shall be governed by Section 8 of the Hindu Succession Act, 1956 -- By Section 8, the mother being described in Class I of the Schedule shall inherit the property excluding other heirs -- Even after remarriage, she shall continue to be the mother of his son, who was born to her from her first husband -- Succession under Section 8 to the estate of son shall not be controlled or prohibited by Section 2 of the Hindu Widow's Remarriage Act, 1856 -- Section 2 shall not govern or regulate any future succession to which she may be entitled under law.

(Para 12)